Steve and Katie talk with Professor Stephen Urice and Judge Simon Frankel about their careers in art law, art law teaching, and their authorship of the 6th edition of the renowned art law textbook “Law, Ethics, and the Visual Arts.” They talk about art law as an academic subject, how to teach and present art law to students, and the experience of updating and rewriting an iconic textbook originally written by the founder of art law teaching, John Henry Merryman.
Resources
https://www.cambridge.org/core/books/law-ethics-and-the-visual-arts/AE23277B273613265C2AAD5C8DFB26C1
https://people.miami.edu/profile/d9e1b0b08817c233028b5f439e068656
https://www.linkedin.com/in/simon-frankel-09b9a74/
https://law.stanford.edu/press/john-henry-merryman-art-law-pioneer-and-much-loved-colleague/
Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Episode Transcription
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City. Hi, Steve.
Steve Schindler: Hi, Katie. How are you?
Katie Wilson-Milne: I’m pretty good. The weather’s nice. That’s what I can say.
Steve Schindler: The weather is excellent. And as you know, I just got back from two weeks in Ireland, and the weather was not so great, although the country was beautiful.
Katie Wilson-Milne: Yeah, bright green.
Steve Schindler: Bright green. Saw some beautiful countryside and some great art.
Katie Wilson-Milne: And you distributed information about the Art Law Podcast wherever you went.
Steve Schindler: Absolutely. We now- and Jackie, our producer, will notice, I’m sure, that we’re going to have some downloads, both from Ireland and from other places, from people that…
Katie Wilson-Milne: Were on the trip.
Steve Schindler: …we met. Yeah. And I left a couple of podcast bags lying around too.
Katie Wilson-Milne: Just strewn about.
Steve Schindler: Yes. Alright.
Katie Wilson-Milne: Well, thank you. That’s helpful. Alright. So today, we’re doing something new. We’re talking about one of the most used, most well-known and well-respected art law textbooks, “Law, Ethics, and the Visual Arts,” which has existed in many editions. And we’re speaking with its two current authors who just published the most recent version, version 6, this year about how they structured the textbook, how one thinks about teaches, and structures teaching materials for an art law class, which is relevant to both of us and our listeners, but also hopefully just people interested in art law generally and how these stories get told.
Steve Schindler: Yeah. And this is a book that I’ve used in my teaching for a number of years. I think they sometimes refer to it as LEVA, as an abbreviation for “Law, Ethics, and the Visual Arts.” But I have the fifth edition. But now…
Katie Wilson-Milne: Time to update.
Steve Schindler: Update to the sixth edition. So let’s go to it.
Katie Wilson-Milne: All right. Without further ado, our guests are Stephen Urice, who is a professor of law at the University of Miami School of Law. He is a former archaeologist and attorney. He earned a PhD in art history and a JD at Harvard. And he writes and lectures internationally on art, museums, and cultural property law, which Steve and I have had the pleasure of seeing ourselves.
Steve Schindler: Absolutely.
Katie Wilson-Milne: We also have Simon Frankel, who is now a judge of the Superior Court of California in San Francisco and teaches art and the law at Stanford Law School. He has spoken and published widely on issues concerning art and law. And before becoming a judge, he practiced law in San Francisco for 28 years. So welcome to the podcast.
Stephen Urice: Thank you.
Simon Frankel: Thank you.
Katie Wilson-Milne: Alright, well, maybe we could just start by having each of you talk to us a little bit about your careers in art law and your experience teaching as that became part of your careers.
Stephen Urice: Alright, I guess I’ll get started on that. As you mentioned, I worked as a field archaeologist before going to law school. So for me, there was a natural combination of my interest in art history and archaeology and the law. And I did practice law when I came out of law school for a few years. But before that, I had taken a course with John Merryman in art law in 1982, and he was teaching on leave of absence from Stanford at NYU. I flew down from Boston every week. And that’s how we met, and I continued to maintain my relationship with John for a long time. And when the fifth edition came along, he asked me to join him in preparing it from the fourth to the fifth, and then from the fifth to the sixth. But I started teaching art law with an earlier edition of LEVA at UCLA in 1988, and I’ve been teaching- I was teaching as an adjunct until 2006 when I joined the faculty at the University of Miami School of Law, where I continued to teach classes in art law and museum law and related topics.
Steve Schindler: And actually, before we get to Simon and your background, maybe you could just say, Steve, a little bit about John Merryman, who you mentioned, because he is so significant and the original author of this text.
Stephen Urice: And John is also considered really the founding mind behind the field of art law as an independent discipline of scholarship, of teaching, of legislative activity, of practice. He started by teaching a course in art and the law in 19- I think ’72, it was. And that was the first time he had taught it at Stanford after getting permission from the curriculum committee to do so. But before that, John had already established himself as the leading scholar of comparative law in this country. But in the 1960s, his wife, Nancy, opened a gallery focusing on contemporary prints. And as Nancy once said to me, she would come home from her gallery and ask, as she put it, her big shot Stanford law professor husband, a question about something to do with artists or art. And as she put it, you know what? He didn’t know the answers. And it was that prodding, I think, that got John interested.
And he brought in Al Elsen, who was a Rodin scholar in the art history department, to join him in this venture of developing a course in art and the law. And it’s been taught every year since then. And since John’s death in 2015, Simon has co-taught it with a colleague of ours as well. But I think it’s important to remember that John had already become an internationally recognized scholar in another field before he began to develop art law in his 60s.
Katie Wilson-Milne: Actually, that is kind of related to a question I have for you, Stephen, too, about your own career. You were practicing, you were a successful attorney. Were you dealing with art law issues in that practice, or how did that practice lead you into this field of teaching and then this change of career?
Stephen Urice: Only indirectly. I was practicing in two firms, one in New York and one in Los Angeles, in their estate planning departments across some states, which with high net worth individuals often includes distribution of art, charitable contributions of art. So I was indirectly related to art law, but it was the field that I would spend time on weekends catching up with whatever was out there. And it was my intention at some point to combine these fields, as I had the good fortune of doing.
Katie Wilson-Milne: All right, Simon, tell us about your own illustrious career and art law beginnings. I know you have an interesting story.
Simon Frankel: Perhaps a little more circuitous than Stephen’s. I went to law school in a time when very few law schools had classes on art law. Certainly mine did not. In fact, I think just for comparative purposes, in the three years I was in law school, the law school had taught an intellectual property course once.
Katie Wilson-Milne: That’s the same for me. And I think- I’m not as young as I used to be, but maybe a little younger than you, Simon. Still true some places.
Simon Frankel: So it wasn’t an area I really thought about, except that in my father was a business lawyer, general business, taxation, real estate, some trust and estates lawyer in San Francisco for many years. And in his 60s, when he retired, he went back to school and did a master’s degree in Harvard. This is when I was in law school. And he took a class at the law school on art law, taught by a visiting professor. And this really fired his imagination. And he got very interested in this area. It built on prior interests he had an environmental preservation.
And at the same time, I got out of law school and I happened to clerk for a judge who had authored a number of influential opinions in the copyright area, particularly in the area of fair use, Pierre Leval in New York. And so I became interested in copyright law, even though I’d never taken it in law school. And I came back to San Francisco, where I was born and raised, to start practicing law at a firm here. And my father had decided in his retirement to put together a class on art law to teach at what was then Boalt Hall Berkeley Law School. And long story short, I ended up teaching it with him as a young associate, and just really enjoyed the material and reveled in it. And we taught it together a number of times in the 1990s at Berkeley and a couple of other law schools.
And at the same time, because I was teaching in this area, I would start to get small matters at my firm that were in the art-related area, consulting on a client who owned a painting or a gallery client, things like that. And as time went on, I got increasing numbers of matters in the art law area, different kinds. And I continued to teach. My father eventually, as I like to say, retired from his retirement. And I continued to teach on my own at law schools in the Bay Area and then continued to get more matters. And over time, handled some interesting, fascinating, and significant matters in the art law area related to Nazi-era art restitution, repatriation of antiquities, freedom of expression in art, and similar. So then in, I think it was 2014, Stephen and John reached out about helping them on the next edition. And I had also published a number of articles in art law areas, and I was delighted to join the team.
Katie Wilson-Milne: So maybe you can tell us a little bit more about the background of the book. I think the first edition came out in 1979, is that right? And so what was the landscape of the text for art law teaching at that time? I mean, was it- was Merryman’s idea that there was a big gap that needed to be filled, or that there could be a textbook that was structured differently, or a class that was structured differently? I’m just wondering how that was initially situated and then how it evolved.
Stephen Urice: Let me take a quick stab at that. We have to remember that in the 60s and in the 70s, there were matters bubbling up. There were certain, what we would consider art law, issues that hit the headlines. For example, John Canaday’s piece on deaccessioning at the Met, the Met’s purchase of the Euphronios vase also hit the front pages. There was, in the 60s and into 1970, development of the UNESCO 1970 Convention on the International Movement of Art and Antiquities. Things were starting to bubble up in this area. John went to the curriculum committee in 1970, I guess, to convince them that Stanford should have a course in art and the law.
Steve Schindler: What was Stanford’s reaction to that?
Stephen Urice: Well, he talks about it in an article in the Journal of Legal Education from the late 70s. It’s really quite interesting. He was the butt of a lot of jokes about it. But the joke ended up being on them rather than on John. And he compiled materials, cases that he could find, statutes that he could find. But without Elsen’s help, they realized they had to rely on media, journal pieces, articles, other kinds of writings, interviews with people, guest speakers, artists, dealers, collectors, and so on. And so this loose set of materials that they developed in the 70s eventually became the first edition of “Law, Ethics, and the Visual Arts,” LEVA 1 in 1979. But it developed somewhat organically out of the materials they had compiled for teaching this first course in any law school in this field.
Katie Wilson-Milne: And what was the market for art law textbook, though, in ’79? I mean, you know, there’s one thing to pitch a class at an elite law school and teach it and compile your own materials. It’s another thing to write a book in which, you know, you hope sells some copies.
Steve Schindler: You can at least sell it to your class.
Katie Wilson-Milne: Yeah. You can sell it to your class.
Stephen Urice: What was interesting is the first edition was put out by Matthew Bender in a loose leaf format. So, at least- I never asked John this question- but I believe the idea was that Al and John would supplement this loose leaf first edition as things went on. It wasn’t until the second edition that they abandoned the loose leaf format and put it into a textbook format from there. Also, you have to remember that in law schools, there were not many courses, but thanks to Al’s influence and others, there was developing an interest in anthropology departments, art history departments, to begin looking at some of these materials with a different eye through a legal lens. And we know that it wasn’t a big market for art law text, but that was another reason why this book, since its first edition, has attracted not only students, but practitioners, museum personnel, art world denizens, and interested readers, because it is a wonderful compilation of different kinds of materials.
Simon Frankel: That’s something we’ve really tried to carry on in the current edition, LEVA 6, is adding a lot of new materials that are not traditional materials: deposition transcripts, transcripts from colloquies, submissions to government agencies, even a short excerpt from a novel- to give people a sense of what’s actually happening in the world, how these issues are really playing out in the world, a little more broadly than a traditional law school casebook that primarily is cases.
Steve Schindler: Right. And just maybe, let’s talk a little bit about the name of the book, because it could have been called “Law and the Visual Arts.” That would make a lot of sense, and I’m sure nobody was thinking about, oh, does LEVA sound better than ELVA? But why?
Katie Wilson-Milne: We don’t know.
Steve Schindler: What is the significance of the inclusion of the word “ethics” in an art law textbook?
Simon Frankel: So I think this was part of John and Al Elsen’s original conception- was there was a sort of set of legal guidelines and then ethical guidelines, or should be, that structure the behavior of those people who operate in the art world. And they wanted to cover something larger than the legal rules. And since they began this, they’ve actually developed a lot more non-legal rules that govern these areas. There weren’t many, there are more. And I’m thinking of things like codes of conduct of various organizations, museum organizations, gallery organizations, et cetera, which have developed extensive codes of conduct. And I think they were looking to, and we’ve tried to continue this tradition of portraying the different norms, as well as legal rules that govern the art world. There’s a museum scholar, Marie Malaro, who said, “the law makes us bearable, not honorable.” And I think that’s very important in this world. The law sets a minimum set of standards for our behavior in a civil society, but they aren’t necessarily always the best behaviors. And in the art world, there are a lot of guidelines, practices, and then codes of conduct in others that set out an ethical set of guidelines that allow people maybe to sometimes be honorable. So we wanted to include all of those here.
Katie Wilson-Milne: I think one of the things that makes the subject matter so rich, and I think your textbook so interesting and different, I think, than other law school textbooks, is that there’s a rich element of culture, right, and the market, and history, right, that is not just an aside in some of the notes, but is really wound into everything about teaching the subject matter, understanding the subject matter. And I’m struck by this in reading the chapters and in teaching the material and, you know, if Steve and I give a lecture on any of these topics, that it’s so much more than the law. And actually, in the world of visual arts, where the law is often not understood or regarded very well by market participants, you know, it’s often the last thing that dictates behavior. So understanding that world and the stories behind why people do what they do and how these conflicts come to be and the ethics and culture around them is so important. And I think you’ve done that in the book and it makes it more fun to read.
Stephen Urice: And it was one reason why John relied so heavily on Al Elsen at the beginning of developing these materials and the course was that, well, John initially realized that you needed something more than just law. You needed to put this art world, the few statutes that existed, the few international treaties that existed, into its context of how the art world behaves. Because it was and it still is an unusual industry. And that was one reason for bringing an art historian who understood, for example, the art market so well understood what artists were confronting, what artists’ dealers were confronting, what collectors were confronting. And so it’s the context that also demanded bringing in, for example, codes of ethics into the book. The law is pretty ham-handed when it comes to cultural property disputes. There can be no Solomonic judgment when you’re arguing over who has rightful possession of a painting. You can’t cut it in half. And so the law is fairly strict in where it heads. And it’s codes of ethics and ethical behavior that has been assisting, for example, in the area of restitution of Holocaust art. In context of the restitution of Holocaust art, ethics has played really a more important role in resolving many disputes than have shown up in the law courts.
Katie Wilson-Milne: Right. And we’ll talk, I think, more- we’ll talk more about your process of the book, but, you know, you’re teachers first, right, before you came to updating this text. And I imagine you were thinking about being a teacher and teaching the subject matter as you were working on the book. And are there other things that are most important in how you teach the subject matter and how you’ve seen students react to it that you wanted to capture in the book or that were captured that you think are the most important aspects of how the book is structured?
Simon Frankel: I have a few thoughts there. Just starting with the structure, because this edition is trying to take all the best from the old edition, all the inspiration from it, but update it. It’s been 15 years, but also make it more accessible. Prior editions of the book had a wide range of content, as we’ve talked about, but they were traditional law school teaching books which tend to present the materials and let the students figure it out. So one thing we’ve tried to do here, which I think reflects our teaching experience, is provide more guidance for readers. Art law involves a lot of different areas. An art law case could involve contracts and torts and civil procedure. It can involve property rules and other areas. And so trying to give students and readers the background to understand, for example, title and authenticity requires an understanding of the Uniform Commercial Code, of warranties, of how they play a role here, of statutes of limitations and how they interact. And so to provide some guidance- I went to law school, at least some of the rest of you did, in an era when you would open up your casebook and there would be a case, and you’d finish the case, and there would be another case, and there was not a lot of glue connecting them, not a lot of guidance. And so we really wanted to provide the guidance and the framework and the structure for people diving into this, whether they’re students or practitioners or just people in the art world looking for guidance to understand the framework. For example, copyright, give them the basics and then get to the really interesting art law issues.
Steve Schindler: Yeah. You’re triggering me a little bit when you talk about the casebooks that have just the cases. You read them and then you go on and then you have a professor that interrogates somebody for like 45 minutes, and everyone’s sitting there saying, what is this all about? And I recognize that things have evolved, luckily.
Katie Wilson-Milne: But also as Simon, as you point out, this subject matter isn’t suited to that. I think one of the real challenges both in writing texts about art law and in teaching it is that it is not its own doctrine, right? And so what you’re doing is based on whatever the writer or the teacher wants to do, you’re just picking the random different legal doctrines that are most interesting to you as they intersect with the art world. And so the traditional ones, of course, are copyright, the First Amendment, cultural property, personal property laws, generally. And then to those of us that do tax, tax issues, which is not my focus. But I think that presents a unique challenge, because you have either a lecture class or a seminar and students- every student is not likely to have taken the background class in each of those doctrines. And so to get to a rich discussion about the complicated, interesting art law issues, you have to teach this whole separate doctrine and then apply it to the art world in maybe one class and in an amount of reading that the students can handle before that one class, which is really hard. So I wonder if you have thoughts both in the book about how you approach that balance between overload but enough background to be able to engage with the material and maybe how you think about that in teaching, too.
Stephen Urice: The sixth edition that we’ve just come out with is entirely reorganized. We decided that we would approach this edition from the perspective of a work of visual art. So we start with artists, artists and dealers, the primary market, statutes that apply specifically to where artists can live and work. We then move on to the work of art and its primary sale and discuss consignments, issues around consignment statutes that have developed. And we move on then to collectors and the art market. We’re able to bring in issues of title and authenticity. And we move forward in something of a planned way to help students come into the field and understand from the perspective of the visual artist and the work of art, its progress through the art market and the art world.
And of course, we later pick up non-contemporary art in our chapters on other matters. But we have approached it in that way to help students, I think it helps students, understand better the life cycle of a work of art, the life cycle of artists as they come along.
Simon Frankel: And I’ll add a couple of things. I think realistically there is more in this book than could be taught in a single law school course.
Katie Wilson-Milne: Confirmed, yes.
Steve Schindler: Amen, yes.
Simon Frankel: But one of the objectives we were trying to achieve in this edition was to have something that would allow teachers to teach from it a variety of courses. You could have an introductory or a basic course on art and the law and draw from it. You wouldn’t use all of each chapter, but you might use a substantial portion of many chapters. Some teachers might teach a more transactually-oriented course, and they would want to focus on the chapters on artists and dealers and on collectors and auctions, and then on tax issues. And there should be plenty of material for those areas. Other scholars may want to teach a more cultural property-focused course. It’s really looking at issues of title, authenticity, status limitations, art and war, antiquities, and trade and cultural property. And those are there. I sometimes use the metaphor of a buffet. It’s all there, and you can put together your class from it. But I think there’s a variety, and we wanted this to be something everyone could use for teaching across a wide range. But also make it, as we’ve said, a more accessible book and honestly a more fun book.
A book that will draw the reader in, we hope, into various topics, introduce them, include in it some of the amazing anecdotes you get in the art world, odd stories, strange characters, amazing situations. I mean, that’s one of the things that makes this area so fun to work in and to teach, is that it, as you two know from your practice, you get a lot of interesting situations and often good anecdotes. And we wanted those to come through in a way that was combined with the teaching of the book.
Steve Schindler: You’re obviously, you’re working on the sixth edition of what can best be described as an iconic work. And clearly you had to, in order to make room for some of this new material, you had to discard some of the older material. Was that difficult? And both because you were both colleagues of Professor Merryman and were close to him.
Steve Schindler: Was it challenging?
Simon Frankel: I sometimes joked with Stephen during the process that it sometimes seemed like the fifth edition was like the attic of John Merryman’s mind. Every interesting story he had collected over many years was in there. And it was a challenging process to try to prune that back as was necessary, but keep the good ones, the ones that were educational, that were thought provoking. So some of it is not there anymore. A lot of it is there. But while we did, as Stephen said, reorganize it, we tried to keep a lot of aspects of the old edition while pushing it in certain ways. There were certain areas where I think John had more of a viewpoint, and we’ve tried to be a little more balanced in this. But a lot of what he had collected over the years is still there.
Katie Wilson-Milne: I definitely want to talk about that, because not just that John had- Merryman had a viewpoint, but that our way of thinking about a lot of these topics has evolved dramatically, not just over these decades, but in the last, let’s say, like 10 years. So I can imagine that was front of mind. Do you mind just talking some nuts and bolts? So you agree to update the book. How do you actually do it? What’s the process? How does it happen? Maybe you could just- you know, I assume you had a structure to how you approached it.
Stephen Urice: Well, one thing I would say first is that we discussed our approach and where we were headed with John while he was still alive, and he thoroughly backed us and what we had planned to do. And then Simon and I got together and it took us a while to figure out the structure. And once the structure was in place, our basic chapters, our basic outline, then it was fairly easy to start plugging in materials. But also since the fifth edition, there’s been a great deal of new legislation and particularly new cases, and a great deal of secondary source material that has come out. That we were able to introduce into the sixth edition to take the place of an earlier text or an earlier version of a statute. And I think for me the most difficult part was working with Simon on trying to figure out what should the book look like in broad terms. And then I think it went fairly smoothly. Simon, what did you think about that?
Simon Frankel: It did go smoothly, but it did not go quickly.
Stephen Urice: That’s right.
Simon Frankel: It took a lot of work. And I will add that we had a substantial help from a number of Stephen’s research assistants over the years and a very significant number of my more junior colleagues at my prior law firm to whom I’m very grateful. I was lucky enough to get a number of them to take on portions of chapters, sometimes chapters, and go out and do a lot of the work that Stephen has mentioned. Looking at more recent cases, working with me to figure out, is this a better case for teaching purposes? What changes have there been in statutes? What new issues have come up in this area? And so then we had a large quantum of material for each of the chapters that we had now outlined. And then it was just a long focused process of melding that into the chapter and editing them down. And also taking a lot of the comments from the earlier edition and augmenting them significantly, new comments, because I think a lot of value in this edition is in the comments, which provide a lot of guidance to students, a lot of questions for teachers, and a lot of thought-provoking information.
Steve Schindler: When did you start working on it?
Simon Frankel: I received an email, I can only tell you, I received an email from Stephen in July of, this is embarrassing, 2014, asking to join the project.
Katie Wilson-Milne: Oh my God.
Simon Frankel: So we had a number of conversations with John. He passed away in the summer of 2015, and then there were some delays, and then I think real work started a couple years later beyond the organizing. We both had day jobs. It took some time to push those chapters forward. I will also add, the book’s been in pre-publication for longer than I would have liked. I think we had completed the manuscript in the fall of 2022. I think it was 2022, and we had assistance to get it ready for the publisher, then the publisher has had it for a while. Now, finally, it’s out.
Katie Wilson-Milne: Well, first, congratulations. We should have said that to start. It must feel great and like a relief. Did you, when you were restructuring it, I can see a process where you’re looking at the table of contents and you’re reorganizing it, and then you’re just rearranging the existing chapters. But how much of it was sort of just reorganizing Merryman’s conception versus a completely new conception? For example, are the chapters roughly the same topics, but just in different order, and is the way you approach each topic generally the same with updated materials if necessary? Or was there some broader rethinking here that really replaced maybe Merryman’s fingerprints on this or handprints on this?
Simon Frankel: I have some quick thoughts. I mean, I think both. And what I mean by that is we did reorient it, as Stephen said, to look at it starting with the artist, how the artist lives, where they can live, even things like toxic materials, moving on to how do they sell their art relations. And then onward from there. The chapters do mostly track the chapters in the last edition. I think there were nine chapters before we have 10. But within that, chapters are substantially different. I think there’s a lot more structure. To take an example, artist rights in the works they create is the longest chapter. Chapter three, which is all about copyright, moral rights, resale royalties, other rights. And that was given a lot more structure and a lot more introductory material than he would have had, than was in the last edition. Stephen, what would you add?
Stephen Urice: Well, I would say that I think that pretty well covers it. And amidst all of these structural changes, new materials, and a slightly different approach, I think there are two that I want to emphasize. One is that John was very powerfully strong in his opinions on certain topics. And we did our best to try to bring the book into a more midstream description of those and try to keep it a little bit more balanced than perhaps the 5th edition might have been or the earlier editions. But there is also one thing I want to emphasize that we have continued and this concern John from the very beginning, and we talked about it, and that is there are two questions. One is, why should art be treated any differently than any other form of tangible personal property? What makes art special? And what about the artist? Why is it that an artist alone has a continuing right to oversee his or her work now in certain respects, even after it has been sold to a third party who has title, good title to the work? So those two basic questions, why is art treated differently at law? In what ways is an artist treated differently in law than other people? Those have remained throughout and they’re interwoven throughout all of the book. And so there are, yes, all of these other changes we’ve discussed, but there are certain continuities that also remain.
Steve Schindler: Yeah, those are, I mean, really two fascinating questions and sort of markers that you do see. I mean, I always sort of come upon those when I’m teaching. Why does the law treat art differently? And in some aspects, it doesn’t treat it differently at all. But that’s, you know, the UCC doesn’t really care if it’s art or not art. Let’s go back for one second, because you’ve mentioned now a couple of times that John Merryman had some strong points of view that were expressed in the book, and you’ve tried to make them a little bit more balanced. Could you give us an example or two?
Stephen Urice: I think one would be on repatriation. The world has come a long way since the last edition, in the last 15 years in particular, have seen dramatic shifts in collectors’ and museums’ approach to repatriation. And I think we’ve captured some of that, whereas John had approached it in the 70s from a more simplistic position that he had developed in his article, “Two Ways of Thinking of Cultural Property” was the basic text for his approach. But the world has changed. The law has not changed a lot, but practice, ethics, approaches to these problems has changed. And I hope we’ve captured some of that in the new book.
Steve Schindler: And this one, you’re talking about repatriation, is it archaeological looting that you’re talking about? I mean, I’m just trying to distinguish that from maybe Nazi-looted art, or where was he focused here?
Stephen Urice: We do distinguish between restitution of looted art during the war from the repatriation, the return to a country of origin of an object. Now, we’ve kept three of the same examples that had been in the earlier editions on repatriation, the Elgin Marbles, the bust of Nefertiti, and which was the third, Simon?
Simon Frankel: Teotihuacan. Yes, thank you. But I think we’ve contextualized those discussions a bit more fairly.
Katie Wilson-Milne: Well, I think to put just some more detail on this, because it’s important and actually interesting- and you include Merryman’s essay on this in the book, or some portion of it- but he had distinguished these approaches as what he would call the internationalist, universalist versus nationalist view of cultural property, and even though I think our understanding of whose voices are heard and what points of view are prioritized in maybe Merryman’s thinking about this- that’s still an informative article and I think worth considering. So his premise, right, please correct me, is that let’s take the idea of just theft or obvious looting out of the equation, something obviously illegal. But in the cases where we’re making a moral judgment about whether something belongs to a certain kind of people or not based on some ethical or historical basis, he pressed a little harder on that to say, these are world-important objects, these are part of global culture, they’re important to all of us, our focus should be on their preservation and accessibility, not on returning them to some people that could claim some historic connection or not. And he was writing this at the time in the 70s, right, the beginning of this movement to a more nationalist perspective, and that was because of the end of colonialism and the building of these new nation-states and a focus on national identity for good and bad across the world, which we’re still seeing. But this movement to have the law and ethics focus on who does this belong to and who gets to control it.
And I think he’s comparing those, those are two different moral and ethical priorities, and he took a non-nationalist approach to say we should have a universal view of this and not focus on who gets to control this because of some real or imagined ethical or historic connection. And I think that is a view that feels uncomfortable for students if they’re just presented with that today. But that doesn’t mean it’s not good for them to understand what the debate was in the last several decades and a pretty popular position for a certain period of time. So I thought it was great and it was thought provoking and led to great class discussion to include some of that still in the book while acknowledging that there’s disagreement and that the world has moved in a different direction.
Stephen Urice: I would say so, but for example, we do include an excerpt from his article, “Two Ways of Thinking About Cultural Property,” but we also add in Alex Bauer’s subsequent piece, “New Ways of Thinking About Cultural Property.”
Katie Wilson-Milne: Right, exactly. Yeah.
Stephen Urice: We do present different perspectives on this issue. We haven’t ditched John’s basic position. We have simply brought in more material to balance it, I think would be the way I would describe it. Simon, do you think that’s fair?
Simon Frankel: Yeah. No, that’s what we were trying to do. I think there’s a portion- and maybe, Katie, this is what you were referring to- where we introduce the reader to the antiquities debate, as we call, and really frame it, because I think it’s super important for readers, not just students, but readers to understand the broader historical arguments, tensions that have driven debate in this area. Because it’s through that lens that you can understand the cases and the legal rules and see how they fit into this context of different priorities and different pressures. But it has shifted, and I will say that in teaching in this area for just shy of 30 years, I have seen students’ attitudes to these issues of repatriation have shifted over time with a greater sense that often return may make sense.
Katie Wilson-Milne: Right, but I think the trick of the textbook is that you do present fodder for discussion. Right? If you just present it as an obvious moral imperative to return every object without historical question, then that’s not interesting, right? Because obviously, it was controversial. It is controversial for a reason, and it serves no one not to explain that and also to have the students- require them to articulate their own views and the basis for them and address hard cases. So I thought that was just one of the most interesting, difficult, but really interesting areas, both in the book and to apply in class.
Simon Frankel: Yeah, I’ll add one of the exercises that my co-teacher at Stanford and I have enjoyed doing in our class is when we get to this topic, we have a debate in the class on the Elgin marbles, the marbles from the Parthenon that are still at the British Museum about whether they should be returned, and we assign sides. My co-teacher has purchased a number of Greek and British flags.
Katie Wilson-Milne: She’s amazing.
Simon Frankel: And that day, they are candidate for a random flag, and they don’t get a choice, and then they have to make those arguments, and it’s a super helpful exercise for them because they’ve had a chance to review the arguments on both sides, and then how do they apply them to this particular debate?
Steve Schindler: You’ve given me a great idea. I love that.
Katie Wilson-Milne: I mean, assigning any debate is a great idea. Are there other areas besides cultural property and antiquities that Merryman had developed a particularly strong point of view on that came through in the book?
Stephen Urice: There’s one area on which he lectured and wrote, which was his absolutely firm belief that in the governance of museums, boards of trustees, boards of directors of museums, should never include an art dealer. And he was pretty adamant on that point and published it. Our approach to governance, I think, lays out very clearly the underlying fiduciary duties of the members of a governing board of a museum, and doesn’t necessarily come down one way or the other, provides students with enough information so that in class, if you ask that question, you would be able to get a good discussion going among students. I think that would be one area where he was immovable, so to say.
Katie Wilson-Milne: Students can understand that point when just reviewing the basic fiduciary and ethical obligations. A board member plus the complexity of the art market and the incestuous nature of all these players, they can deduce some of this. I mean, we’re talking about some of the challenges in writing a book about such a gigantic multifaceted subject matter. One other challenge that I would be curious your thoughts on is just you’re writing this book. You start in, let’s say, 2014; you finish it three years ago. I mean, isn’t it necessarily that as soon as you’re done, it’s out of date? I mean, how do you deal with that?
Simon Frankel: I mean, that is always a risk with any book, a non-fiction book, but certainly a book where you’re trying to capture the current state of the law and related ethical moral issues. There are areas where that is true. The most striking one, we were able to go back and update the portions on copyright fair use.
Steve Schindler: Oh, great.
Katie Wilson-Milne: Yeah.
Simon Frankel: In May of 2023, the Supreme Court decided the Andy Warhol Foundation versus Goldsmith case, which was very important decision there. So we were able to include that in full and include commentary on that. The other area where I think this issue is most pointed, in my mind, is in the area of artificial intelligence and art. That has- as with all things, artificial intelligence, that has exploded in the period that the book has been in pre-publication. We do have a discussion of artificial intelligence and copyright, which is the most relevant area and some other areas, but primarily copyright and cover the key issues where copyright and artificial intelligence really intersect, whether the ingestion by AI search engines of large quantities of visual images would be infringing on the copyright in those images, and also who, if anyone, owns the copyright in the visual output of an artificial intelligence engine. So we do cover those, and I will say that right now, there’s not been a lot of new opinions in the area, but there are going to be in the next year or so on both these issues, and so that is a rapidly developing area.
Steve Schindler: And do you do supplements to this book, or it’s just have to wait till the next edition?
Simon Frankel: I think we’re trying to figure that out at this time.
Steve Schindler: Okay. We hope to do whatever we can to keep it current.
Simon Frankel: We do have a website. Can I plug it? Yes.
Steve Schindler: Yeah, sure.
Simon Frankel: www.leva6.org, and I do anticipate that we would try to make available materials there for scholars-
Steve Schindler: That’s great.
Simon Frankel: Teachers and practitioners to stay a little more abreast. Stephen?
Stephen Urice: There’s a third area that I would raise here too, that we do discuss the WPA and government funding of the arts.
Katie Wilson-Milne: Good. That entire world has changed in the last few months. And that material is almost immediately out of date.
Stephen Urice: So whether we do a supplement or whether we do an update or whether we do a new edition, we’re going to have to have a discussion with Cambridge University Press about how to do all of this.
Simon Frankel: Yeah. I would qualify that a little. I don’t think it’s all out of date for a couple of reasons. We may see the resurrection of federal funding of the arts. But in addition, the materials cover a critical issue, which is how and under what circumstances the government can fund only certain kinds of art and choose what kinds of art to fund. That’s an issue that we may see in the current administration.
Katie Wilson-Milne: Just looking at these materials this year was really interesting. It’s one of my particular areas of interest. I thought, of course, news-wise it’s out of date, but the law isn’t out of date. Those fundamental First Amendment principles as they apply to government speech and government funding are not out of date. It was incredible to be rereading Finley. These cases that are still good law, they enunciate the principle accurately, that’s still relevant. You know, sort of being ignored by the administration doing the exact same thing that the NEA was asked to do in the 90s. I found it relevant and particularly interesting because of that.
Steve Schindler: I think that’s an area where some of the older cases which were seeming less relevant are becoming more so.
Katie Wilson-Milne: Yeah, absolutely.
Yes, that’s a very good point.
Simon Frankel: Yeah, and these issues do keep coming up and I was thinking about them recently listening to your recent episode on the Sally Mann photographs in Texas.
Katie Wilson-Milne: What’s old is new. Yeah.
Simon Frankel: Exactly. It was so fascinating to see all the dynamics of Cincinnati 1989 playing out again.
Katie Wilson-Milne: Yeah. So when you were working on this book, were you looking at other textbooks in the field and getting information from them? And if so, I’d love to hear how you feel like you are situated in that world, what contributions you make that are unique, how is the book different than other texts?
Stephen Urice: Well, I would say, I’ll have to admit this, that I did not. I did not look at other texts. I felt we were starting with a good base with the fifth edition of LEVA, and we knew what we wanted to do with it, we knew where we wanted to take it, and we knew what we wanted to create with it. So I didn’t. Simon, did you?
Simon Frankel: I did look at other ones I was aware of and that I could look at, primarily to see if there were issues, topics in the broad range of art law that they cover, that we might want to cover. I don’t recall finding them, but also if there were any particular materials, cases or statues that they had.But what I think we were trying to do was a little different from what other casebooks- and they are casebooks, really- from what they’ve tried to do, which was not just to have a fun, engaging and comprehensive teaching text, but also something useful for practitioners, and maybe even people in the art world generally, or people interested in the art world who could dip in and learn something and be engaged.So we were really looking in a different direction, so I wasn’t certainly weren’t trying to emulate or anything like that, other works.
Katie Wilson-Milne: Would you say that’s because you have more non-case materials, more explanatory text?
Simon Frankel: That and some of the themes we’ve talked about of, why should artists be treated differently? I would add in a third theme there, which is who decides or who’s best deciding. Stephen mentioned earlier “the laws of blunt instrument.” You have a lot of statutes in the United States that require a lot of decisions when they’re litigated about such things as whether something is fine art. And as a lot of judges have acknowledged, they may not be the best trained people to make that decision in different instances. And they need assistance often from experts. And it’s a constant theme of the book that we’ve tried to push is who’s best positioned to make these decisions and how.
Katie Wilson-Milne: Related to that, the theme of law is not only a blunt instrument, but it’s a limited tool, right? It just, it doesn’t answer the question in so many cases. And so, I think having that additional cultural, ethical explanation around certain issues is really thematic and helpful as you’re trying to understand all this varied subject matter.
For example, in the case of authenticity, right? I mean, judges can torture themselves and have to, for certain types of claims, listen to experts and make a decision that touches on authenticity.But the market may not care. And so, I think there’s always this question of, can the law even answer this question? And if it does, does it practically matter? So, I thought that was useful.
Simon Frankel: Yes. The wonderful case that maybe you’ve taught recently, Katie, of Greenberg versus Bowden, where the leading scholar, Alexander Calder, didn’t think this was a genuine Calder, or maybe it had been damaged or something. But the burden of proof, because this was the court, was on one party to prove it was not authentic. The judge found they hadn’t met the burden of proof, therefore he couldn’t find it was not authentic. So, the plaintiff there who was claiming it wasn’t authentic was then left with a work that a court had found was likely by Calder, but the world’s expert on Calder has said it wasn’t or was damaged. So, you had this total disconnect between the art market, which was not going to treat it as authentic, and a judge who had found there was insufficient proof that it was inauthentic. And you do see- that’s one of the more dramatic examples in the book, but you see many instances of mismatch between what the law can do well and how the art market functions.
Katie Wilson-Milne: Yeah, and that’s not a dated example at all. I mean, in our practice, it may be more now than in the past. We’re seeing a lot of problems and disputes between so-called market experts. The one person the market has designated as the person who can weigh in on the quality, provenance, authenticity of a work, and some often legitimate factual challenges to that person’s opinion, that still don’t matter to the value of a work, because it’s been eviscerated by this one person’s opinion that might be arbitrary. I think those are really interesting cases, and they help explain this dynamic in the art world, too.
Stephen Urice: It’s also an important case in class because students sometimes, even at that stage in the course, don’t quite understand this dynamic about, well, the judge said it was authentic. What’s the problem? Well, that’s where we try to bring in these other materials in our own comments to explain that the court may say that, but the art market is hearing something different. Or another area is where this issue often comes up is- and we get good debate, I get good debate in class on it- is the requirement under the Visual Artists Rights Act of 1990, that if you’re talking about the destruction of a work of visual art, it must be of recognized stature. Well, recognized by whom and how much stature? And that usually gets a class really going. So there are times when the law, either the case law, judicial decision, or the statute presents these issues where the workings of the art market, the art world obviate what one reads.
Steve Schindler: Yeah.
Katie Wilson-Milne: It also makes it hard to apply the law consistently. I think one of the great things about teaching this rather than practicing is in practice, we are trying to look for rules that we can apply with some expectation.
Steve Schindler: And advocating a position.
Katie Wilson-Milne: Yeah, but advocating saying like this is the rule.
Steve Schindler: Right.
Katie Wilson-Milne: There shouldn’t be a lot of debate.
Steve Schindler: That’s right.
Katie Wilson-Milne: But when you really dive into this material with some academic interest, you’re never left with any clarity. You’re really just left at every at least interesting topic. Copyright, definitely the First Amendment, to some extent cultural property with total confusion at the end of studying it, because it’s so hard to apply these rules consistently in the context of art.
Steve Schindler: You know, it’s also reared its ugly head recently, which I always thought these were sort of quaint cases, and you start your book with this question of what is art? The Brancusi case, which goes back to the 1920s, I think, and obviously the Haunch of Venison case about this question of when something is imported into the United States, and it’s always been the rule that art is not subject to import duties, and then a sculpture like that of Bird of Flight of Constantin Brancusi comes in, and the customs inspector says, that’s not art, right? But now we’re sort of back to the same questions, right, that people have been asking us, which is, now that we have these new tariffs, which seemingly art is still exempt, maybe. But the question is, what is art when something comes in? Because anybody can look at an object and either it’s art or it’s not, and so that subject is still very much alive.
Katie Wilson-Milne: And this comes up in copyright too, right? What’s a useful object? What’s applied art? And I think that really can drive people, students crazy in a good way, because really this lamp with this beautiful sculpture on its base isn’t protected in the same way that this would be if there just wasn’t a light bulb there. And we have to do this whole convoluted analysis, which could never be applied consistently to figure that out.So there’s a lot of ways in which still the courts are inconsistently trying to figure out, you know, what is at least protected creativity.
Simon Frankel: I’ll just add on two quick thoughts. One is on the recognized stature point that Stephen made. It’s a good example of the sort of disconnect. So Congress writes a statute to be protected from destruction of work must be a recognized stature. That’s not a term of art in the art world. It’s not a standard. It’s just a legal construct. And one of the first cases applying the Visual Arts Rights Act, the Carter v. Helmsley-Spear case, the court spent a couple of like a page to reach the conclusion that what recognized stature means is that the work has stature that is recognized.
Katie Wilson-Milne: Right.
Simon Frankel: I always thought that was wonderful and the students enjoy it and it’s sort of a- even then you haven’t gotten closer to an art world concept and you still get to the question of what do experts think of this work. The Haunch Venison case you mentioned, Steve, I think is a wonderful modern example of this question of how do you determine if something’s art because that was, I believe that was the one involving Dan Flavin.
Katie Wilson-Milne: Yeah.
Steve Schindler: Dan Flavin and Bill Viola.
Simon Frankel: Yeah. In the case of Flavin, someone who works in the medium, if it’s a medium of fluorescent light bulbs, long cylindrical fluorescent light bulbs created into sculptures.
Simon Frankel: When it went to be imported into England, the taxing authorities there, same situation as here, viewed it as not artwork, it was light bulbs. So they taxed it as that with a high rate. But ironically, what was the value to be taxed? From what I’ve seen of the case, the way they treated it was, they treated the value, not the value of whatever it was, six fluorescent light bulbs attached to each other.
Katie Wilson-Milne: But they tried to have it both ways.
Steve Schindler: They had it both ways. It was like, right, they’re light bulbs for categorizing them, but they’re using the value as art.
Katie Wilson-Milne: Flavin market value for the tax.
Steve Schindler: Which made no sense, but that was kind of a crazy case.
Katie Wilson-Milne: I guess the last thought I have on these themes is that there’s a dose of skepticism that is useful to apply in all these areas and cases. And I think you could teach a class like this with a presumption that art is special, that artists are special, that art is both like, it’s precious and we need to treat it differently and not question that underlying assumption, but it deserves to be questioned.And I think building that into so much of this subject matter that really is an artist so different than a furniture maker is just- all these assumptions we have that are cultural more than legal, but that judges have to deal with is really, I think, useful. And it’s a useful exercise for me too to sort of go back to those first assumptions.
Stephen Urice: And, you know, in many of these kind of first assumptions, I think the buffet is a good example. I mean, at a buffet, you can either get indigestion or you can eat well. It depends upon what you do. But we did try to provide as much in these various areas, in these 10 chapters as we could, understanding that no academic would teach all 10, but also understanding that we hope the book has been written in such a way that it will be useful, not only in classrooms, but as Simon also said, people professionally involved in the art world or collectors, and there is an interested general public out there, the public that comes to museums, that visits galleries regularly on Saturdays. And we hope the book will be attractive to those people that are not in a classroom, to help them if they have a particular issue with authenticity, to understand what are the underlying issues. So, I think we do a good job, if I can say so myself, in presenting a textbook, but also one that, a book that’s going to be interesting for the art world denizens in general. Right, I mean, that’s, we try to do that on the podcast, too.
Katie Wilson-Milne: This is not a podcast for lawyers, and a lot of our listeners are just interested in the world of culture and weird stories and things that come up. So it’s fitting that we’re talking about this on our podcast. Maybe we can end with talking a little bit more about your teaching and you noted some changes over the years and how your students were thinking about cultural property and restitution or repatriation issues. But are there other trends or changes you’ve seen in your decades of teaching, either from the particular interest of students, like what’s most engaging them now versus maybe in the past? What are they most interested about? What’s the most challenging to teach?
Simon Frankel: Well, one obvious difference from 30 years ago is the explosion of intellectual property as something that is studied in law schools, practiced in the world. So when I started teaching, this was a copyright, moral rights, or so on and so on. These were an important part of the class. But many of the students did not have any background in or particular interest in it. Now it’s very different. They’re very aware of the copyright issues, at least not the other issues. Many have taken classes in copyright. Many of them have over summers worked in the area. So there’s a real focus on those issues. I think that will only increase with artificial intelligence. It’s a legal and everyday topic.
Steve Schindler: Well, that’s probably a good place to end it.
Simon Frankel: Thank you both very much. Katie, Steve, thank you so much.
Steve Schindler: Yeah, it was a pleasure. Talk to you soon.
Simon Frankel: Pleasure. Take care.
Steve Schindler: And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts, and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson. Finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.
Steve Schindler: I’m Steve Schindler, bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.